Reflections on White Collar Crime and Federal Criminal Law

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Is NY Times Reporter James Risen Just “Doing His Job?”

In an article in the Washington Post on October 10, Matt Zapotosky repeated the often-heard claim that New York Times reporter James Risen is facing jail or other penalties for simply “doing his job.”

Journalists being punished for doing their jobs? Sounds like something that happens in totalitarian countries, not in the land of the First Amendment. What’s going on here?

A little background: James Risen is a Pulitzer-prize winning reporter who focuses on national security issues. In 2003 a confidential source from the CIA leaked classified information to Risen about U.S. Government efforts to undermine Iran’s nuclear program. Risen actually didn’t publish a story about it in the Times, but he used the information in a book he wrote in 2006 called State of War.

The government identified former CIA employee Jeffrey Sterling as Risen’s suspected source and indicted him for illegally leaking classified information. He’s now facing trial in federal court in the Eastern District of Virginia. Risen, as the recipient of the leak, is the only direct witness to Sterling’s alleged crime, so the government would like him to testify. Citing a reporter’s obligation to protect the identity of his confidential sources, Risen has refused.

In a 1972 case, Branzburg v. Hayes, the Supreme Court held that the First Amendment does not create a privilege that allows reporters to refuse to identify their sources, at least in criminal cases. The U.S. Court of Appeals for the Fourth Circuit ruled that, based on Branzburg, Risen has no right not to testify, and the Supreme Court declined to hear Risen’s appeal. As things stand right now, therefore, Risen is under subpoena to testify in Sterling’s trial, and he has no legal basis to refuse. The government could choose to drop the subpoena but it’s unclear whether it will do so.

Typically, a witness who refuses to testify without a valid reason may be held in contempt of court. The witness may then be jailed, or fined a certain amount per day, until he or she agrees to testify. The penalty is intended to coerce the witness into compliance; witnesses jailed for contempt are said to hold the keys to their own jail cell, because they need only comply with the court order in question to be released.

Risen says he will go to jail rather than identify his source. This puts the Department of Justice in a bit of a pickle. As the Fourth Circuit noted, Risen’s testimony is critical to the prosecution because he is the only one with direct knowledge concerning the source of the leaks. The administration is trying to deter leaks of classified information that may harm national security, and clearly views this as a significant case.

On the other hand, this administration has faced substantial criticism for its supposed hostility to the press (most of that criticism coming from the press itself, of course). Both President Obama and Attorney General Holder have said they don’t believe journalists should face jail for doing their jobs. That seems indisputable – we don’t imprison reporters in this country for their reporting work. Attorney General Holder apparently reiterated this just this week.

But that leaves open this question: would punishing Risen for refusing to testify be punishing him for doing his job?

It’s important to note at the outset that it is extremely rare for a journalist to be asked to testify about his or her sources. The Department of Justice has very strict guidelines (recently made even stricter) governing when it will subpoena a reporter, and does so only as a last resort. Risen is one of only a handful of such cases in recent memory. In the overwhelming majority of cases, therefore, journalists’ sources remain absolutely protected with no government interference.

It’s also important to recognize that Risen does not face punishment for any work directly related to reporting. He has not been charged for talking to Sterling, for obtaining or publishing the classified information, or for any news gathering, writing, or publishing activity – the types of things we would normally regard as a reporter “doing his job.” (In fact, although this point is frequently obscured, Risen hasn’t been charged with or prosecuted for anything – he’s merely a potential witness, not a defendant.)

It is true, though, that it is also part of a reporter’s job to protect the identity of confidential sources. That practice has longstanding roots in the journalism profession. Reporters believe their ability to promise confidentiality is essential to encouraging sources to come forward and reveal information without fear of reprisals. But recognizing a general duty to protect sources only begins to answer the question.

Other professions, including lawyers, doctors, and clergy, also have a duty to protect the confidentiality of information communicated to them. These duties, however, all exist within the context of the overall obligations imposed by the legal system. The understood subtext is that individuals will fulfill their obligations and do their jobs, including maintaining confidentiality of communications, to the fullest extent allowed by law. All professions operate — or at least we hope they do — with the understanding that in carrying out their duties, the individuals within that profession will abide by the law.

For example, as a lawyer, I have a duty to protect client confidences, and doing so is definitely part of my job. But if a court rules in a particular case that the attorney-client privilege does not apply and that I must testify about certain client communications, then as a citizen I have an obligation to abide by that order, even if I’m convinced that the court is wrong.

This rule doesn’t apply just to lawyers, of course. Whether Risen has a legal right not to testify is a question of constitutional law and evidence. In this country, those questions are decided by courts, interpreting either constitutional norms or statutes passed by a legislature. Individual citizens don’t get to decide for themselves what the rules are or which laws they will follow.

Journalism operates within the context of our system of laws, not in some unique legal vacuum. If a newspaper violates the libel laws it may be punished in the courts, and this does not violate the First Amendment. A reporter could not hire a burglar to break into a politician’s home to steal evidence for a story and then claim he was only “doing his job” and should not be prosecuted. By the same token, journalists may protect the identity of their sources to the limits of the law, but are not free to defy the law when they disagree with the outcome in a particular case.

Journalists may argue that they are different because their duty of confidentiality is rooted in the critical First Amendment freedom of the press. (Put to one side, for now, the fact that the Supreme Court has ruled the First Amendment does not require a reporter’s privilege.) But other privileges have roots in the Constitution as well – the clergy privilege supports the free exercise of religion; the attorney-client privilege supports the right to counsel. Even constitutional rights are never absolute – the classic example being that freedom of speech does not allow one to yell “fire” in a crowded theater.

In a pluralistic society, compelling interests, even constitutional interests, will sometimes clash — such as the interest in a vigorous, free press and the interest in deterring unlawful leaks of classified information that may damage national security. Sorting out those conflicting interests is the job of courts and legislatures. And the rule of law — or the social contract, if you will — means that we all agree to abide by those decisions.

So to answer the question: No, Risen does not face punishment for “doing his job.” Risen’s job includes a duty to protect the confidentiality of his sources to the fullest extent allowed by law. He has done that by taking his fight all the way to the Supreme Court. The courts have ruled he must testify. Risen’s job does not include deciding for himself what the law requires and flaunting legal rulings with which he disagrees.

Of course Risen has the power to refuse to testify — as do we all — but he does not have the right to do so. If he chooses to defy the law and is punished that will not make him a hero or a martyr, although if history is any guide, his colleagues in the press will undoubtedly hail him as such.